BY COLIN ABBOTT, ESQ.
FOR THE PAST 22 YEARS, the U Nonimmigrant Visa has been available to noncitizens who were victims of qualifying crimes.1 The intent of the U nonimmigrant status was to both protect victims who had suffered abuse and to strengthen the ability of law enforcement to investigate and prosecute these crimes.2
Today, the U Nonimmigrant Visa remains a viable option to assist noncitizens who can show they meet the eligibility requirements. However, five factors of eligibility should be examined holistically to present a viable application. Although the USCIS Instructions require separation of these factors, the proofs that support qualification of the noncitizen may be interrelated and have complex dependencies.
1. Qualifying Criminal Activity
The original legislation enacted by Congress in 2000 limited the availability of the U Nonimmigrant Visa to victims of specific or any similar criminal activity.3 This decision to list specific crimes resulted in the requirement of proof showing by the preponderance of the evidence that the noncitizen was a victim of a qualifying criminal activity.4
The requirement that for a criminal act under a federal, state, or local statute to be considered a “qualifying criminal activity” it is required that its elements be like one of the named activities.5 It will be necessary for the practitioner to evaluate the criminal activity within the context of it being a qualifying crime and include a legal argument in the application to demonstrate that the activityVqualifies within the definition of the original law and enabling regulation.6
2. Substantial Physical or Mental Abuse
The analysis is further complicated byVthe inclusion of the requirement that the victim suffered “substantial” physical or mental abuse because of being a victim ofVthe qualifying crime.7 The substantial abuse threshold thus needs to be incorporated not only within the qualifying crime analysis, but also as a stand-alone element with separate legal analysis using the standard set by U Visa regulations.8
The “proof of substantial harm” element must be clearly presented in the words of the victim and also through medical records and psychological reports. The abuse argument can be strengthened using trauma research especially if the academia examines the vic- tim abuse related specifically to the criminal activity being examined.9
3. Territorial Requirement
There exists a jurisdictional requirement that must be met to qualify for the U Nonimmi- grant Status. The qualifying criminal activity must have taken place within the United States, its territories or possessions, or the act must have violated U.S. laws that provide for extraterritorial jurisdiction to prosecute the offense in U.S. federal court.10 This requirement can usually be proven by the police report or a criminal court document.11
The territorial requirement usually becomes an issue requiring specific legal argument when the criminal activity has both domestic and international acts, especially if multijurisdictional facts are present or the qualifying crime is based on the attempt, conspiracy, or solicitation to commit any of the named actions.12
4. Victim Helpfulness
The helpfulness of the victim requirement is broken into two separate interrelated elements that must be proven to provide sufficient proof for the applicant to prove quali- fication for the U Nonimmigrant Status.13
The first element is that the victim has possession of the criminal activity, and the second element is the victim was helpful, is helpful, or is likely to be helpful to law enforcement. Both requirements were placed in the original legislation to ensure victim cooperation throughout the investigation and prosecution of the crimes.14
To ensure that there exists clear proof of victim cooperation and helpfulness to law enforcement, the Form I-918 Supplement B was created and made a mandatory requirement to be included when applying for U Nonim- migration status.15
The signing of the Form I-918 Supplement B is a discretionary power held by the desig- nated agent.16 The inability to obtain a signed Supplement B will result in the denial of the request at the filing stage.17 It is important to remember that it has only a six-month validity for use from the signing date.18
Noncitizen admissibility is a requirement like other forms of nonimmigrant status available under U.S. immigration law.19 USCIS will assess the petitioner’s admissibility when determining if the noncitizen can be granted the U Nonimmigrant status. Examples of grounds of inadmissibility include illegal entry into the country, criminal and related grounds, and working without authorization.20.
If a noncitizen has present inadmissibilIty issues, it may be waived using the I-192 Application for Advance Permission to Enter as a Non-Immigrant.21 If needed, the I-192 Application can be filed with the I-918 and if adjudicated favorably will enable the noncitizen to enter the U Visa status without admissibility issues.22
To increase one’s chance of success with the nonimmigrant U Visa application, the attorney should analyze each of the five factors in turn and then examine how these interrelate. If one demonstrates that evidence not only fits each of the five elements but also links together across multiple areas, this approach will lead to a stronger legal argument.
The USCIS Policy Alert published June 14, 2021, signaled that the current federal administration holds true to the original intent of the U Nonimmigrant Status.23 This 2021 policy provides interim relief including work authorization and continued presence protecting applicants from deportation. The 2021 policy change helps to ensure that the Nonimmigrant U Visa remains a viable option for clients.
COLIN ABBOTT is an associate attorney with Beach-Oswald Immigration Law & Associates, PC. 888 17th St. NW, Suite 310, Washington DC. For the past 20 plus years, Abbott has lectured and written on immigration law and has assisted clients from throughout the world to secure immigration benefits.
- The U Nonimmigrant Visa was created as a humanitarian immigration benefit with the passage by the U.S. Congress of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act). United States. (2000). Victims of Trafficking and Violence Protection Act of 2000. Washington, D.C.: U.S. G.P.O.
- For a comprehensive examination of the stakeholder presentations made during the Congressional hearings related to establish- ment of the U nonimmigrant visa see Katrina Castillo, et al., Legislative History of VAWA (94, 00, 05), T and U-Visas, Battered Spouse Waiver, and VAWA Confidentiality, National Immigrant Women’s Advocacy Project at https://niwaplibrary.wcl.american.edu/wp-con- tent/uploads/2015/VAWA_Leg-History_Final.pdf.
- See INA § 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii).
- USCIS Policy Manual provides an analysis of the eligibility requirements to prove qualification for the u nonimmigrant status. SeeU.S. Citizenship and Immigration Services. USCIS Policy Manual. [Washington, D.C.]: U.S. Citizenship and Immigration Services, Vol.2, Pt.C, Ch.2.
- See INA § 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii).
- Practitioners can use analysis like that used in the 2019 DHS guide used to assist law enforcement, prosecutors, judges, and other government agencies in the review of criminal activity to determine if it meets the guidelines for u visa certification. See Department of Homeland Security, U Visa Law Enforcement Resource Guide 7 (2019), available at https://www.uscis.gov/sites/default/files/docu- ment/guides/U_Visa_Law_Enforcement_ Resource_Guide.pdf.
- See INA § 101(a)(15)(U)(i)(I), 8 U.S.C. 1101(a)(15)(U)(i)(I).
- See 8 C.F.R. § 214.14(b)(1).
- See Cho, Eunice, Hass, Giselle, and Saucedo, Leticia M., A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime (June 12, 2015), Georgetown Immigration Law Journal, Vol. 29, 2015, UC Davis Legal Studies Research Paper No. 439, available at SSRN: https://ssrn.com/abstract=2617686.
- See 8 C.F.R. § 214.14(b)(4).
- For a more detailed explanation of the territorial proof requirement see USCIS Form I-918: Instructions for Petition for U Nonimmi- grant Status and Supplement A, Petition for Qualifying Family Member of U-1 Recipient (12/02/21) at p. 2, available at Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient (uscis.gov).
- For example, a qualifying criminal activity is fraud in foreign labor contracting. This crime usually involves the acts of multiple individ- uals located outside of the United States. In such a case it is necessary to provide evidence that meets the territorial requirement and or the violation of American law requirement. See U.S. Department of Labor, Wage and Hour Division, U and T Visa Certifica- tions, available at https://www.dol.gov/agencies/whd/immigration/u-t-visa.
- See 8 C.F.R. § 214.14(b)(2), 8 C.F.R. § 214.14(b)(3).
- See DHS, U Visa Law Enforcement Resource Guide 7 (2019) at 8–9.
- See 8 C.F.R. § 214.14(c)(2)(i),
- See DHS. U Visa Law Enforcement Resource Guide 7 (2019) at 9-10.
- See DHS. U Visa Law Enforcement Resource Guide 7 (2019) at 2.
- See 8 C.F.R. § 214.14(c)(2)(i),
- See INA § 212, 8 U.S.C. 1182.
- See INA § 101(a)(15)(u).
- See INA §212(d)(14).
- See 8 C.F.R. § 214.14(c)(2)(iv),
- USCIS, Policy Alert, PA-2021-13, available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210614-Vic- timsOfCrimes.pdf.